Refuting Nullification, Part One
Frank Cocozzelli printable version print page     Bookmark and Share
Sun May 19, 2013 at 05:24:36 PM EST
The emerging influence of Thomas J. Woods and other neo-Confederate ideologues within the Catholic Right was the focus of the first post in this series. They are advocating the failed concepts of secession and the nullification of federal statutes and court rulings. The second post in the series explored why nullification matters and how it can lead to localized tyranny and theocracy.  To complete the quartet, we will discuss first how proponent's claims for historical justification are simply wrong, and then detail the Constitutional argument against nullification.
Traditionalist Catholics such as Thomas Woods and Opus Dei firebrand Fr. C. John McCloskey, who are openly discussing nullification and secession -- are finding common cause in a growing movement. The libertarian Catholic Acton Institute has looked upon Woods' gospel of nullification with approval, even (incorrectly) equating it with the Catholic principle of subsidiarity (human affairs are best handled at the lowest possible level). More and more the concept is being discussed as a viable political option by socially conservative and traditionalist Catholics.

As I previously reported, among the Catholic Rightists beating the drum for nullification are Pat Buchanan, Thomas DiLorenzo, Thomas Fleming and Thomas E. Woods, Jr.  All four advocate states' rights, a seething resentment of Abraham Lincoln, and as Rachel Tabachnick recently highlighted, Woods is a key member of the pro-secession League of the South, Traditional Catholicism (save possibly DiLorenzo) and Austrian-school, libertarian economics.

Known as "tenthers" they argue that individual states, citing the Tenth Amendment to the federal Constitution, have the right to nullify federal legislation or court rulings of which they disapprove -- on quite a range of subjects.  Some have recently argued that states should and have the right to block federal health care reform; refuse to enforce federal firearms regulation and some cases, as a justification for imposing Christianity as an official state religion. Gov. Sam Brownback of Kansas - an Opus Dei convert to Catholicism -- has already signed several nullification bills into law, inviting a federal court challenge. U.S. Attorney General Eric Holder has written to Brownback to inform him that his legislation is unconstitutional.  Indeed, nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.

As dubious as nullification may sound to liberals, let's note that even the conservative Heritage Foundation calls it "Unlawful and Unconstitutional." The libertarian Cato Institute is only slightly less absolute, citing a limited use for nullification, but cautions:  "Can a state impede federal authorities from enforcing their own law if the state deems the law to be unconstitutional.  The answer is "No," although more radical nullification proponents would disagree."

States Did Not Precede the Union

The claim by Woods and other latter-day John Calhouns that nullification is consistent with the original intent of the Constitution is rooted in bad history. They assert that the states constitute a higher authority than any of the branches of the federal government because the individual states existed before the national government was created.  However, a fair reading of American history debunks that myth - and by extension, the foundation of the entire nullification argument.

When the notion of secession was at its height, Abraham Lincoln argued for a sturdy form of federalism.  "Plainly," Lincoln declared, "the central idea of secession is the essence of anarchy."   Lincoln was soon proved to be correct. In the closing days of the Civil War, Alabama and Georgia were so protective of their notion of state sovereignty that they threatened to secede from the Confederacy.  Even Jefferson Davis, the president of the Confederacy admitted, his movement "died of a theory" -- and that theory was states rights.

The fallacy that "the states preceded the federal government" argument  is exposed by simply considering the history of the thirteen colonies.  At the time of the revolution each were Crown colonies, which is to say that the King of England appointed their governors.  Royal charter founded indeed most of them. New York (then including whole swaths of territory that would become New Jersey) was wrestled from the Dutch by the British, and added to her American holdings.  Little more than a century later, the British military might engaged in a war with France and her Native American allies to protect the colonies (in what we now call the French and Indian War.) The British victory enlarged the American colonies.  Massachusetts gained control of what is now Maine while Virginia expanded into what is now West Virginia.

The political loyalty of what was to become our first thirteen states originally was to the King and Parliament, a binding central government. The common thread that ran through the complaints of each American colony in April 1775 was that they were being taxed and bullied by that central entity without any true representation in its decision-making. And when they initially revolted they did not do so advocating for their rights as Rhode Islanders or New Yorkers or as Georgians but as their rights as British subjects. They were simply demanding a say in the Parliament that was legislating without them being able to debate or vote on any law that adversely affected their general welfare.

When the Continental Army drove the British from Boston in March 1776, units from Maryland, Pennsylvania and Virginia while being commanded by a Virginian, George Washington, joined the Massachusetts Militia. They answered to a Continental Congress, not individual state governments. More importantly, when independence was declared it was done with purpose of severing their common governing relationship with London and replacing it with our own central authority. This was the cause that transformed into the creation of a nation.

The argument that the states precede the federal government truly falls apart with the addition of the post-Revolution states. The states that were created out of the Louisiana Purchase were made possible with the common funds from the United States Treasury. Individual states were also carved out from United States' Territories. The same is true of Alaska.  In the case of what are now our Southwestern states, those descended from territories seized from Mexico by a nationally organized war (a conflict opposed by then-Congressman Lincoln). Many of the upper western states were created from territories similarly seized from Native tribes such as the Sioux and Cheyenne.

Finally, it is worth noting that whatever our political outlooks, few of us see the founding of the Jamestown and Plymouth colonies as the origin of individual sections or states. Rather, we see them as the beginning of our identity, warts and all, as an American People (the longer history of Native Americans, notwithstanding).  We celebrate Thanksgiving Day, for example, as a national tradition, not one unique to Massachusetts.  Likewise, we celebrate July 4th as the beginning of the American Revolution, not the secession of the individual original thirteen colonies from the British Empire.  Rather, we all revolted in unison and reliance upon each other to create a new nation.

Thomas Woods and his ilk are simply wrong about American history; the states did not precede either a central government or our common identity as a people.

For more on this see A Talk to Action Anthology on Nullification and Secession.

My concern is that with times getting harder for ordinary people, you will see people like Thomas Woods and his ideological counterparts exploiting regional and political differences to create the Civil War Part II. Nullification is one of those political concepts that should have gone into the dustbin of history, but it doesn't prevent retrograde thinkers like Woods and new NRA head James Porter from exploiting people's fears and prejudices.

by khughes1963 on Tue May 21, 2013 at 07:49:26 PM EST

When he wrote his book Nullification, I e-mailed him and he answered and we discussed the book in some detail.  He is a very decent guy, it seems.

While he is a brilliant historian and has vast knowledge of the Framing of the Constitution and the philosophical underpinnings of the document, he is neither a legal scholar nor a practicing attorney.  He didn't seem to see how ineffective Nullification is on a day-to-day legal basis.

Federal criminal statutes are not usually enforced by District or Commonwealth's Attorneys or state AGs.  They are enforced in federal Courts by US Attorneys.  Suits on Federal Civil statutes that have a private right of action (ERISA or Civil RICO, for example), while they could be brought in state court, usually aren't, they tend to be brought in Federal Court to avoid removal there.

While it isn't exactly Nullification, California essentially legalized Medical Marijuana.  However, the Feds during the Bush Administration and the first years of the Obama Administration continued to enforce Federal Law (which tends to require an interstate aspect).  In the words of Rocket J. Squirrel, "Again?  That trick never works!"

However, while the legal effect is limited, having the support required to nullify a Federal Law usually reflects vast political support for the change in law and perhaps a sea-change in politics.  

While the Alien & Sedition acts were still enforced in Virginia and Kentucky, the nullification of the Act in 1798 was a harbinger of Federalist setbacks in the election of 1800.  While fugitive slaves were still captured in Wisconsin, the nullification of the Fugitive Slave Law was a sign of resolve against the institution of slavery growing in the north before the Civil War.  While Jackson was able to force the Tariff on South Carolina during the Nullification crisis, the Tariff was soon repealed.

While not something that is very useful in and of it self, it is a useful barometer of political will.                

by John Minehan on Wed Jun 19, 2013 at 08:55:40 PM EST

"The political loyalty of what was to become our first thirteen states originally was to the King and Parliament, a binding central government."

Well, no, not really.  

There was loyalty to the King, up to (and even after) the Declaration of Independence.  However, for several reasons, there was much less loyalty to Parliament.

In the first place, the Colonies were not represented in Parliament.  Secondly, Parliament was less involved with the Colonies, royal governors were appointed by the King, for example.  Finally, some Colonies, notably Virginia, were colonized by Royalist refugees from the English Civil War of the 1640s that culminated in Parliamentary regicide.

England left the colonies alone, or at least more alone than France or Spain did with New France or New Spain.  The Colonies, operated largely independently of both England and each other through the time of the French and Indian/7 Years War, as demonstrated by the failure of the Albany Plan of 1755.

That ended about 1763, when the North Government tried to recoup some of Great Britain's expenditures on the war by direct taxation which was unprecedented.  That war had required unprecedented British military effort and spending and had been started by then-MAJ Washington and a Seneca named  Tanacharison near the Forks of the Ohio, .  Further, chastened by the bloody effort to put down Pontiac's Rebellion and concerned about assimilating a French (and Catholic) population in Canada, the North Government restricted Colonial expansion beyond the Appalachians, one of the main reasons that the Colonies had (to some degree) cooperated with each other and with Britain.

In short, we do not have a national heritage of cooperation or centralization.            

by John Minehan on Wed Jun 19, 2013 at 09:46:37 PM EST

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